19-1613 Xing v. Rosen BIA Conroy, IJ A206 230 159
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals 2 for the Second Circuit, held at the Thurgood Marshall United 3 States Courthouse, 40 Foley Square, in the City of New York, 4 on the 22nd day of January, two thousand twenty-one. 5 6 PRESENT: 7 DEBRA ANN LIVINGSTON, 8 Chief Judge, 9 RICHARD C. WESLEY, 10 STEVEN J. MENASHI, 11 Circuit Judges. 12 _____________________________________ 13 14 LIANG JIA XING, 15 Petitioner, 16 17 v. 19-1613 18 NAC 19 JEFFREY A. ROSEN, ACTING UNITED 20 STATES ATTORNEY GENERAL, 21 Respondent. 22 _____________________________________ 23 24 FOR PETITIONER: Thomas V. Massucci, Esq., New 25 York, NY. 26 27 FOR RESPONDENT: Jeffrey Bossert Clark, Acting 28 Assistant Attorney General; Claire 29 L. Workman, Senior Litigation 30 Counsel; Edward C. Durant, 1 Attorney, Office of Immigration 2 Litigation, United States 3 Department of Justice, Washington, 4 DC. 5 6 UPON DUE CONSIDERATION of this petition for review of a
7 Board of Immigration Appeals (“BIA”) decision, it is hereby
8 ORDERED, ADJUDGED, AND DECREED that the petition for review
9 is DENIED.
10 Petitioner Liang Jia Xing, a native and citizen of the
11 People’s Republic of China, seeks review of a May 1, 2019,
12 decision of the BIA affirming a January 5, 2018, decision of
13 an Immigration Judge (“IJ”) denying Xing’s application for
14 asylum, withholding of removal, and relief under the
15 Convention Against Torture (“CAT”). In re Liang Jia Xing,
16 No. A206 230 159 (B.I.A. May 1, 2019), aff’g No. A206 230 159
17 (Immig. Ct. N.Y. City Jan. 5, 2018). We assume the parties’
18 familiarity with the underlying facts and procedural history.
19 Under the circumstances, we have considered both the IJ’s
20 and the BIA’s opinions “for the sake of completeness.”
21 Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d
22 Cir. 2006). The applicable standards of review are well
23 established. See 8 U.S.C. § 1252(b)(4)(B); Hong Fei Gao v.
24 Sessions, 891 F.3d 67, 76 (2d Cir. 2018).
25 “Considering the totality of the circumstances, and all
2 1 relevant factors, a trier of fact may base a credibility
2 determination on the demeanor, candor, or responsiveness of
3 the applicant or witness, the inherent plausibility of the
4 applicant’s or witness’s account, the consistency between the
5 applicant’s or witness’s written and oral statements . . . ,
6 [and] the internal consistency of each such statement . . .
7 without regard to whether an inconsistency, inaccuracy, or
8 falsehood goes to the heart of the applicant’s claim, or any
9 other relevant factor.” 8 U.S.C. § 1158(b)(1)(B)(iii); see
10 also Xiu Xia Lin v. Mukasey, 534 F.3d 162, 163–64 (2d Cir.
11 2008). “We defer . . . to an IJ’s credibility determination
12 unless, from the totality of the circumstances, it is plain
13 that no reasonable fact-finder could make such an adverse
14 credibility ruling.” Xiu Xia Lin, 534 F.3d at 167; accord
15 Hong Fei Gao, 891 F.3d at 76. Substantial evidence supports
16 the agency’s determination that Xing was not credible as to
17 his claim that police in China detained and beat him for
18 practicing Christianity.
19 The IJ reasonably found Xing’s demeanor hesitant and
20 evasive. See 8 U.S.C. § 1158(b)(1)(B)(iii). That finding
21 is supported by the record, which shows that, despite repeated
22 requests for details about the harm he suffered and the
3 1 conditions of his detention, Xing resisted and ultimately
2 failed to provide complete details of his alleged 15-day
3 detention and three beatings. See id.; Jin Shui Qiu v.
4 Ashcroft, 329 F.3d 140, 152 (2d Cir. 2003) (“Where an
5 applicant gives very spare testimony . . . the IJ . . . may
6 fairly wonder whether the testimony is fabricated.”),
7 overruled in part on other grounds by Shi Liang Lin v. U.S.
8 Dep’t of Justice, 494 F.3d 296, 305 (2d Cir. 2007).
9 The IJ’s demeanor finding and adverse credibility
10 determination as a whole were further supported by Xing’s
11 inconsistent evidence regarding where he was when he learned
12 about Christianity and where he hid after his release from
13 detention. See 8 U.S.C. § 1158(b)(1)(B)(iii); see also Likai
14 Gao v. Barr, 968 F.3d 137, 145 n.8 (2d Cir. 2020) (“[E]ven a
15 single inconsistency might preclude an alien from showing
16 that an IJ was compelled to find him credible. Multiple
17 inconsistencies would so preclude even more forcefully.”); Li
18 Hua Lin v. U.S. Dep’t of Justice, 453 F.3d 99, 109 (2d Cir.
19 2006) (“We can be still more confident in our review of
20 observations about an applicant’s demeanor where, as here,
21 they are supported by specific examples of inconsistent
22 testimony.”). Xing could not compellingly explain these
4 1 inconsistencies and his attempts to do so were illogical and
2 confusing, thereby further impugning his credibility. See
3 8 U.S.C. § 1158(b)(1)(B)(iii); Majidi v. Gonzales, 430 F.3d
4 77, 80 (2d Cir. 2005) (“A petitioner must do more than offer
5 a plausible explanation for his inconsistent statements to
6 secure relief; he must demonstrate that a reasonable fact-
7 finder would be compelled to credit his testimony.” (internal
8 quotations omitted)).
9 Having questioned Xing’s credibility, the agency
10 reasonably relied further on his failure to rehabilitate his
11 testimony with reliable corroborating evidence. “An
12 applicant’s failure to corroborate his or her testimony may
13 bear on credibility, because the absence of corroboration in
14 general makes an applicant unable to rehabilitate testimony
15 that has already been called into question.” Biao Yang v.
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19-1613 Xing v. Rosen BIA Conroy, IJ A206 230 159
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals 2 for the Second Circuit, held at the Thurgood Marshall United 3 States Courthouse, 40 Foley Square, in the City of New York, 4 on the 22nd day of January, two thousand twenty-one. 5 6 PRESENT: 7 DEBRA ANN LIVINGSTON, 8 Chief Judge, 9 RICHARD C. WESLEY, 10 STEVEN J. MENASHI, 11 Circuit Judges. 12 _____________________________________ 13 14 LIANG JIA XING, 15 Petitioner, 16 17 v. 19-1613 18 NAC 19 JEFFREY A. ROSEN, ACTING UNITED 20 STATES ATTORNEY GENERAL, 21 Respondent. 22 _____________________________________ 23 24 FOR PETITIONER: Thomas V. Massucci, Esq., New 25 York, NY. 26 27 FOR RESPONDENT: Jeffrey Bossert Clark, Acting 28 Assistant Attorney General; Claire 29 L. Workman, Senior Litigation 30 Counsel; Edward C. Durant, 1 Attorney, Office of Immigration 2 Litigation, United States 3 Department of Justice, Washington, 4 DC. 5 6 UPON DUE CONSIDERATION of this petition for review of a
7 Board of Immigration Appeals (“BIA”) decision, it is hereby
8 ORDERED, ADJUDGED, AND DECREED that the petition for review
9 is DENIED.
10 Petitioner Liang Jia Xing, a native and citizen of the
11 People’s Republic of China, seeks review of a May 1, 2019,
12 decision of the BIA affirming a January 5, 2018, decision of
13 an Immigration Judge (“IJ”) denying Xing’s application for
14 asylum, withholding of removal, and relief under the
15 Convention Against Torture (“CAT”). In re Liang Jia Xing,
16 No. A206 230 159 (B.I.A. May 1, 2019), aff’g No. A206 230 159
17 (Immig. Ct. N.Y. City Jan. 5, 2018). We assume the parties’
18 familiarity with the underlying facts and procedural history.
19 Under the circumstances, we have considered both the IJ’s
20 and the BIA’s opinions “for the sake of completeness.”
21 Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d
22 Cir. 2006). The applicable standards of review are well
23 established. See 8 U.S.C. § 1252(b)(4)(B); Hong Fei Gao v.
24 Sessions, 891 F.3d 67, 76 (2d Cir. 2018).
25 “Considering the totality of the circumstances, and all
2 1 relevant factors, a trier of fact may base a credibility
2 determination on the demeanor, candor, or responsiveness of
3 the applicant or witness, the inherent plausibility of the
4 applicant’s or witness’s account, the consistency between the
5 applicant’s or witness’s written and oral statements . . . ,
6 [and] the internal consistency of each such statement . . .
7 without regard to whether an inconsistency, inaccuracy, or
8 falsehood goes to the heart of the applicant’s claim, or any
9 other relevant factor.” 8 U.S.C. § 1158(b)(1)(B)(iii); see
10 also Xiu Xia Lin v. Mukasey, 534 F.3d 162, 163–64 (2d Cir.
11 2008). “We defer . . . to an IJ’s credibility determination
12 unless, from the totality of the circumstances, it is plain
13 that no reasonable fact-finder could make such an adverse
14 credibility ruling.” Xiu Xia Lin, 534 F.3d at 167; accord
15 Hong Fei Gao, 891 F.3d at 76. Substantial evidence supports
16 the agency’s determination that Xing was not credible as to
17 his claim that police in China detained and beat him for
18 practicing Christianity.
19 The IJ reasonably found Xing’s demeanor hesitant and
20 evasive. See 8 U.S.C. § 1158(b)(1)(B)(iii). That finding
21 is supported by the record, which shows that, despite repeated
22 requests for details about the harm he suffered and the
3 1 conditions of his detention, Xing resisted and ultimately
2 failed to provide complete details of his alleged 15-day
3 detention and three beatings. See id.; Jin Shui Qiu v.
4 Ashcroft, 329 F.3d 140, 152 (2d Cir. 2003) (“Where an
5 applicant gives very spare testimony . . . the IJ . . . may
6 fairly wonder whether the testimony is fabricated.”),
7 overruled in part on other grounds by Shi Liang Lin v. U.S.
8 Dep’t of Justice, 494 F.3d 296, 305 (2d Cir. 2007).
9 The IJ’s demeanor finding and adverse credibility
10 determination as a whole were further supported by Xing’s
11 inconsistent evidence regarding where he was when he learned
12 about Christianity and where he hid after his release from
13 detention. See 8 U.S.C. § 1158(b)(1)(B)(iii); see also Likai
14 Gao v. Barr, 968 F.3d 137, 145 n.8 (2d Cir. 2020) (“[E]ven a
15 single inconsistency might preclude an alien from showing
16 that an IJ was compelled to find him credible. Multiple
17 inconsistencies would so preclude even more forcefully.”); Li
18 Hua Lin v. U.S. Dep’t of Justice, 453 F.3d 99, 109 (2d Cir.
19 2006) (“We can be still more confident in our review of
20 observations about an applicant’s demeanor where, as here,
21 they are supported by specific examples of inconsistent
22 testimony.”). Xing could not compellingly explain these
4 1 inconsistencies and his attempts to do so were illogical and
2 confusing, thereby further impugning his credibility. See
3 8 U.S.C. § 1158(b)(1)(B)(iii); Majidi v. Gonzales, 430 F.3d
4 77, 80 (2d Cir. 2005) (“A petitioner must do more than offer
5 a plausible explanation for his inconsistent statements to
6 secure relief; he must demonstrate that a reasonable fact-
7 finder would be compelled to credit his testimony.” (internal
8 quotations omitted)).
9 Having questioned Xing’s credibility, the agency
10 reasonably relied further on his failure to rehabilitate his
11 testimony with reliable corroborating evidence. “An
12 applicant’s failure to corroborate his or her testimony may
13 bear on credibility, because the absence of corroboration in
14 general makes an applicant unable to rehabilitate testimony
15 that has already been called into question.” Biao Yang v.
16 Gonzales, 496 F.3d 268, 273 (2d Cir. 2007). Xing failed to
17 submit testimony or affidavits from fellow church members in
18 the United States. And the IJ reasonably declined to credit
19 unsworn letters from his relatives and friend in China because
20 the authors were interested parties not subject to cross-
21 examination. See Y.C. v. Holder, 741 F.3d 324, 332, 334 (2d
22 Cir. 2013); see also In re H-L-H- & Z-Y-Z-, 25 I. & N. Dec.
5 1 209, 215 (B.I.A. 2010) (finding that letters from alien’s
2 friends and family were not substantial support for alien’s
3 claims because they were from interested witnesses not
4 subject to cross-examination), overruled on other grounds by
5 Hui Lin Huang v. Holder, 677 F.3d 130, 133–38 (2d Cir. 2012).
6 Given the demeanor, inconsistency, and corroboration
7 findings, the agency’s adverse credibility determination is
8 supported by substantial evidence. See 8 U.S.C.
9 § 1158(b)(1)(B)(iii). That determination was dispositive of
10 asylum, withholding of removal, and CAT relief because all
11 three claims were based on the same factual predicate. See
12 Paul v. Gonzales, 444 F.3d 148, 156–57 (2d Cir. 2006).
13 For the foregoing reasons, the petition for review is
14 DENIED. All pending motions and applications are DENIED and
15 stays VACATED.
16 FOR THE COURT: 17 Catherine O’Hagan Wolfe, 18 Clerk of Court